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45
Policy • Vol. 31 No. 1 • Autumn 2015
DeepAk LAL
Empire in Africa in the 1950s and 1960s, which
were soon overthrown by the Big Men who
inherited the new states, shows that constitutions
are not enough to curb the predatory state. For as
Anthony de Jasy has rightly quipped about chaining
Leviathan, “With its key always within reach, a
chastity belt will at best occasion delay before nature
takes its course!”4
It is in this context that the American constitution
is particularly important. As the late Oxford
political scientist Samuel Finer emphasized in his
magisterial three-volume History of Government, it
was one of the two great revolutions which created
the modern state. It introduced six inventions
in the theory of government: “the notion of a
Constitutional Assembly to frame a constitution;
the written constitution; the Bill of Rights which
this constitution embodies; the use of courts of
law...to signal breaches of the constitution and
exercise powers to obstruct or cancel them; the
so-called Separation of Powers on different lines
from the ‘mixed’ constitutions of the past; and
finally, true Federalism.”
Of these, the separation of powers was in a
sense preeminent in maintaining liberty. As James
Madison wrote in The Federalist No. 48: “The
great security against a gradual concentration of
the several powers in the same department consists
in giving those in each department the necessary
means and personal motives to resist encroachments
of the others. Ambition must be made to counteract
ambition. ... It may be a reflection on human nature
that such devices should be necessary to control
the abuses of government. But what is government
itself but the greatest of all reflections on human
nature?”5 Finer sums up the legacy of the American
Revolution: “It has shown how political power
maybe bridled; and it has stood for two centuries
as the ultimate exercise in law-boundedness. This
is a formidable achievement.”
II. Continental Public Law
The French Revolution is Finer’s second great
revolution creating the lineaments of the modern
State, for “it bequeathed to us the universalistic
‘Rights of Man and the Citizen’ which is the charter
of all would be nation-states...; the ideology, the
new secular religion of nationalism; citizen armies
and the levée en masse; and military interventions
and the Palace/Forum type of polity—the regime
of populist autocracy. Moreover, all four of these
are still alive, working like a leaven throughout the
globe. In that sense the revolution is a Permanent
Revolution. Nothing was ever like it before and
nothing foreseeable will turn this Revolution back.”
It also enshrined the secular principles of the French
Enlightenment by enforcing a separation between
the Church and the State.
The French Revolution was also sparked by the
fiscal crisis faced by the Crown.6 Under Napoleon,
the new legal code became the basis of the
Continental legal system, and this was adopted
by many other countries, particularly in Latin
America. But there are important differences
between this public law tradition and the common
law tradition, as de Jasay has emphasized.7
The
latter is based on Mill’s famous principle of
liberty: a person is free to do whatever is feasible
for him to do, unless he has an obligation not
to do it—as in a contract or promises made—
and if he does not harm others. The legal process
involves a presumption that the accused is
innocent unless found guilty by due process.
By contrast, in the Continental public law
tradition, people are forbidden to undertake
feasible actions unless they are expressly permitted
by various “rights” granted under constitutional
provisions. In fact, as de Jasay notes, these “bills
of rights” are only coherent if they provide a
suspension of a tacit presumption that everything
not covered by them is forbidden by “legislative
discretion if not by legislative fiat.”The common
law tradition is a more easily verifiable basis for
the liberty norm underlying classical liberalism, as
it is easier to verify the prohibited actions of the
common law than the permitted actions of the
public law tradition. Even if the latter accepted
In the continental public law tradition,
people are forbidden to undertake feasible
actions unless they are expressly permitted
by various “rights.”